DHHR files for emergency stay in psych hospitals case

The Department of Health and Human Resources has requested an emergency stay through the West Virginia Supreme Court of Appeals regarding orders entered in the ongoing court battle surrounding its two psychiatric hospitals, after the same request was denied in Kanawha County Circuit Court.

The requests were made in regard to the E.H. v. Matin case, which focuses on patient and employee treatment at the state’s two psychiatric hospitals, William R. Sharpe Jr. Hospital, in Weston, and the Mildred Mitchell-Bateman Hospital in Huntington.

In a decision issued Wednesday, Kanawha Circuit Judge Duke Bloom denied a DHHR request to stay the orders he entered in the case on June 2 and June 27, as well as a request to appeal an oral order issued by him during the last hearing on Aug. 1. The June orders are not final orders, so the DHHR has additionally requested that they be declared final judgments and, therefore, subject to appeal.

The June 2 order directs the DHHR to immediately implement a special starting salary for new health service workers and to retroactively compensate those hired or promoted since January 2013.

The June 27 order is a follow-up to the earlier June order and required DHHR Secretary Karen Bowling and Victoria Jones, commissioner of the Bureau of Behavioral Health and Health Facilities, to appear for a show-cause hearing to determine if the agency should be held in contempt for failing to comply with previous orders.

It also ordered the DHHR to immediately reduce the number of patients at each hospital, to address staffing shortages. The DHHR was not able to considerably reduce the census at either hospital by the Aug. 1 hearing and attributed the failure to an inability to transfer many incoming patients to partnering diversion hospitals, which can exercise a “right of refusal,” and deny new patients.

The third order, issued Aug. 1, instructed the DHHR to implement a plan the agency presented during the hearing and the judge approved. In the DHHR’s proposal, developed after Bloom rejected three other proposals by the department at a June 11 hearing, the DHHR was to order that market-rate studies for both hospitals be conducted by the Division of Personnel, to determine competitive wages for direct-care workers at each hospital. As a result, Bloom purged the contempt, “so long as they execute their proposed plan,” he wrote in an order issued after the hearing.

The DHHR’s counsel filed an emergency application for an immediate stay of the orders on Wednesday, after Bloom issued his order denying the request. The agency argued that, “in order for this court to protect its ability to meaningfully hear DHHR/BHHF’s forthcoming appeal of the circuit court’s order, this court must stay the circuit court’s order before Tuesday, August 19, 2014 — less than six days from today.”

On Tuesday, the Division of Personnel will meet and is set to take action on the proposed pay increases.

“In order to avoid a potentially irrevocable action that would trigger a new staffing pay structure, the DHHR has filed for a stay of the court’s previous order,” said DHHR spokeswoman Allison Adler. “[The] DHHR needs the flexibility to develop its own proposals to continue to make improvements to patient care. It believes the department and the Legislature, not the court, should craft and implement plans to appropriately operate the two hospitals.”

In its emergency stay, the DHHR argued that Bloom required the agency to submit a “permanent solution” to remedy staffing shortages that “did not include new legislation as component of the plan.” In his Aug. 13 denial, Bloom noted that the Aug. 1 order was not final, as it addressed “the same problems that have existed since 2009” — the year the last order for pay increases was issued by the court.

“I don’t intend to usurp the authority of the executive or the legislative branch,” the judge said during the hearing, “but I want to solve the immediate problem that we have with the care of this very vulnerable population.”

Bloom also told the defendants they were free to seek funding through the Legislature if the agency could not maintain the pay increases through current funding sources.

“Although DHHR/BHHF submitted this plan, DHHR/BHHF did so only to avoid contempt sanctions and it simultaneously reiterated its prior oral objections at the hearing,” DHHR counsel wrote in the emergency stay request.

In its response to the Circuit Court stay request, Mountain State Justice, the firm representing patients and employees of the hospitals, argued that, because the DHHR did not object to the 2009 agreed-upon order to implement a pay increase and waived its objections to the court-ordered plan by submitting a compliant plan, it did not have standing to appeal the orders.

“Petitioners are disappointed that the DHHR is choosing to appeal the circuit court’s order, given that this results in continued violations of the 2009 order regarding staffing, continued uses of mandatory overtime, and their detrimental effects on patient care and treatment,” said Mountain State Justice attorney Lydia Milnes.